Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Gause v Alderson [2024] NSWCA 312 Hearing dates: 29 November 2024 Date of orders: 20 December 2024 Decision date: 20 December 2024 Before: Mitchelmore JA at [1];
Stern JA at [2];
Price AJA at [114].Decision: (1) Appeal dismissed.
(2) Cross-appeal allowed.
(3) The appellant to pay the respondents’ costs of the appeal and cross-appeal.
(4) The parties are to take reasonable steps to agree short minutes of order as to what further orders should be made to reflect the respondents’ success on the cross-appeal which should be filed by 5 February 2025. Failing agreement:
(a) The respondents to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 7 February 2025; and
(b) The appellant to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 12 February 2025.
Catchwords: NEGLIGENCE - breach – discrete or hidden risk – where risk of a non-operational smoke alarm was foreseeable and highly significant – where precautions were not onerous
NEGLIGENCE – intoxication – where relevant conduct or activity was being asleep in home – whether there was impairment of capacity to exercise reasonable care and skill due to intoxication
APPEALS - from finding of fact - credibility of witnesses – where primary judge observed the appellant giving evidence - primary judge entitled to make adverse credibility findings
Legislation Cited: Civil Liability Act 2002 (NSW), s 50
Compensation to Relatives Act 1897 (NSW)
Evidence Act 1995 (NSW), s 140(2)
Interpretation Act 1987 (NSW), s 8(b)
Cases Cited: Alderson v Gause [2024] NSWDC 152
Amanda’s On The Edge Pty Ltd v Dries [2011] NSWCA 358
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1893) 6 R 57
Commercial Union Assurance Co of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225
Payne trading as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73
Roads and Traffic Authority v Royal [2008] HCA 19
Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19
Category: Principal judgment Parties: James Gause (Appellant / Cross-Respondent)
Tamara Alderson (First Respondent / First Cross-Appellant)
Narelle Heafey (Second Respondent / Second Cross-Appellant)
John Heafey (Third Respondent / Third Cross-Appellant)
Elijah…
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- AGLC
- Gause v Alderson [2024] NSWCA 312
- Case
- [2024] NSWCA 312
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant had breached their duty of care to the respondent, and whether the primary judge erred in finding that the appellant's intoxication did not impair their capacity to exercise reasonable care and skill. The court also considered whether the primary judge was entitled to make adverse credibility findings against the appellant based on their demeanour when giving evidence.
The Court of Appeal upheld the primary judge's finding of negligence, reasoning that the risk of a non-operational smoke alarm was foreseeable and highly significant, and that the precautions required to mitigate this risk were not onerous. The court found that the appellant's intoxication was not a relevant factor in assessing their capacity to exercise reasonable care and skill in the context of being asleep in their home. Furthermore, the court affirmed the primary judge's entitlement to make adverse credibility findings, given that the judge had the opportunity to observe the appellant giving evidence.
The appeal was dismissed, but the cross-appeal was allowed. The appellant was ordered to pay the respondents’ costs of both the appeal and the cross-appeal. The parties were directed to take reasonable steps to agree on further orders reflecting the respondents’ success on the cross-appeal, with a process for submissions outlined should agreement not be reached.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Cross-appeal allowed.
(3) The appellant to pay the respondents’ costs of the appeal and cross-appeal.
(4) The parties are to take reasonable steps to agree short minutes of order as to what further orders should be made to reflect the respondents’ success on the cross-appeal which should be filed by 5 February 2025. Failing agreement:
(a) The respondents to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 7 February 2025; and
(b) The appellant to file submissions of no more than 3 pages in support of their proposed orders by 4 pm on 12 February 2025.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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